Thanks to Bigdog for posting and opening the issue here. There are two things going on in that writing, his coverage of a book by David Garland and of course his own views on the (lack of) underpinnings for the death penalty.

Start with his last and most important point first: "finality includes the risk that the state may put an actually innocent person to death"

On this point, we can all agree and that may be enough alone to oppose the death penalty. On the rest of the analysis, I find my own view to be different than Stevens.

Stevens writes of 5 classes of persons affected by capital crimes. Summarizing:1) victims, 2) survivors, 3) judicial process, 4) the general public, 5) inmates on death row. In each category, I categorically disagree with the great retiring Justice.

1) The victims, Stevens says, are dead and have no continuing interest. Below I will cite one example, Mariane Pearl, then-pregnant wife of beheaded WSJ reporter Daniel Pearl. Why not take an extreme example for an extreme penalty? Stevens says she is a survivor, not a victim. I disagree. She gets to live with this just like a rape or an arm cut off of her own.

2) Survivors: "often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss." - The goal of justice after a heinous crime or string of murders is not to bring the loved ones back or fully compensate anyone. A straw-man argument to my reading, but let's continue.

3) Stevens examines the death penalty's place in 'judicial process' without any mention of the use by prosecutors and law enforcement of the possibility or not of death penalty to get information, cooperation, a guilty plea or to help solve other crimes or gain additional convictions. Am I mistaken about this aspect of the death penalty or did Stevens leave out an important point?

4) Stevens notes nothing that the general public gains justifying a death penalty, even though earlier in the piece he already conceded the general public believes otherwise. The term elitist sneaks into my mind for someone who knows other people's gain better than they do.

5) Stevens laments that many inmates on death row have repented and made positive contributions to society. The finality of an execution always ends that possibility. - True about some people changing to some extent in some cases. We don't have an accurate way of measuring repent. My view and I think that of those who favor the death penalty is that some crimes against humanity take the convict beyond the opportunity for a second chance. Stevens' concern for killing the guilty who repented never caused his pen to move an inch to save any of the 34 million innocent killings over convenience reasons with their first chance taken away during his 34 years of upholding Roe and deciding Planned Parenthood v. Casey, but I digress...

Let's meet a victim/survivor. In 2002 I watched Jim Lehrer interview the surviving wife of Daniel Pearl. She said something that stuck in mind ever since. Asked about the death penalty for those who perpetrated this brutal killing, in a heavy French accent she said " I think this guy is a nuisance for humanity". Jim Lehrer replied "a what?" Pearl: "He's a nuisance for humanity."..."I would certainly not cry over his death". http://www.pbs.org/newshour/bb/terrorism/jan-june02/pearl_3-18.html

My thoughts into her words: When you behead an innocent journalist , there isn't something left to repent or redeem here on earth. You have made yourself a detraction from humanity, not a part of it. How we deal with such extreme things is a moral choice for our society to live with. We can release with wishful thinking, we can hold for life or we can execute the very worst offenders. These are choices and Stevens and Garland add thoughtful insights, but one-sided analysis to that (IMO). Speedier execution in some cases would be more worthwhile question from my point of view. We as a species or as a civilization draw a line, a moral line. We don't kill for adultery or shoplifting or Stevens example, drunken drivers who cause fatal accidents. But some crimes are so heinous that you are entitled to all the protections of our legal system including reasonable doubt and nearly endless appeals, but there are cases where at the end you are out. You have given up your right to live in our society, to breathe the air or eat the fruit, even among our guards and cement walls. Death penalty doesn't fix what happened. It may not deter others, but the very worst crimes (assuming guilt and after proper appeals) can be met with closure and the finality of a penalty that is in fact an ending.

Part of the social contract is that in exchange for the state's criminal justice power monopoly, that the legal system provides tangible justice for the friends and family of those victimized by criminals. Failure to provide a sense of justice done, would motivate some to seek their own justice, which corrodes the rule of law.

My wife currently serves as a correctional officer in a maximum security prison, where many of the inmates there already know they will die in custody. The death penalty may deter some of those inmates from murdering the correctional officers. Aside from that, many of these inmates have nothing left to lose and have already demonstrated a willingness to take human life without any moral restraint.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**

Your post opens a great many questions. There is a fair amount of discussion about the judicial selection process at the state level these days. Justice O'Connor has been speaking on this subject for years, with a view that elected judges, by definition, are not independent and therefore cannot make unbiased type of decisions. In contrast, several people including Chris Bonneau and Melinda Gann Hall, in a book aptly called "In Defense of Judicial Elections," support the idea of an elected judiciary. It is a hot topic at the moment.

To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union. This is because of the Full Faith and credit clause in Article IV of the Constitution which states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

New rights and more rights, that sounds good. A state court finding a new right of free health care would be an example?

How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:

Thank you, DougMacG for your kind words. Before I discuss your points, and GM's excellent offerings, I want to say that the reason that I posted the JPS piece was not because I agree with his points, but because I thought it worthy of discussion. A book review by a former USSC justice is noteworthy, in my opinion.

That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion. To your points 1-5:

1. Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims. I disagree with this. To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due. Can I, or should I, file a class action suit against every shoplifter because I am impacted? Of course not. The store merchandise is the target, and the store owner is the victim. Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered. It creates a question for which there can be no answer: who is the victim of a crime?.

2. It depends on your view of justice. In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all." This action is meant to be compensatory. While this is a movie, there are plenty of people who have this feeling in American society. But there many views of justice (see http://faculty.cua.edu/hoffmann/courses/201_1068/Plato-3%20Views%20on%20justice.pdf for a discussion of some of these).

3. I will concede point 3, at least mostly. There are certainly instances where the threat of the death penalty can be a service to the law enforcement community. However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.

4. As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure. Does that make you an elitist? It also relates to different forms of representation. For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?

5. That is a digression, yes.

My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends. He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder. Is this not redemption, or at the very least an effort to rectify his prior nuisance?

I think this is exactly Justice Stevens' point. For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional.

Your view of the social contract is incomplete. First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like. Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract. Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on. And, that could benefit death penaly proponents. If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty. There is no reason that the state would seek the family's preferences on this.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**

"I think this is exactly Justice Stevens' point. For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."

**There is endless variation in the outcomes of the criminal justice system. Attractive people fare better than the unattractive, as an example. The quality of the defense and prosecution, the judge's predisposition, the members of the jury, can all cause identical crimes to result in very different verdicts and sentences. If you want to create a standard where any deviation from absolute equality means there is no equal protection, then NO crime can be punished constitutionally.

My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".

The term "victim impact statement" refers to written or oral information about the impact of the crime on the victim and the victim's family. Victim impact statements are most commonly used at sentencing. Such statements provide a means for the court to refocus its attention, at least momentarily, on the human cost of the crime. They also provide a way for the victim to participate in the criminal justice process. The right to make an impact statement generally is extended beyond the direct victim to homicide survivors, the parent or guardian of a minor victim, and the guardian or representative of an incompetent or incapacitated victim.

In a recent survey by the National Center for Victims of Crime, over 1300 victims were asked to rate the importance of various legal rights. Over 80% stated that their ability to make a victim impact statement at sentencing and at parole was "very important."(1)

Every state allows some form of victim impact information at sentencing. The majority of states allow both oral and/or written statements from the victim at the sentencing hearing, and require victim impact information to be included in the pre-sentence report. As of 1997, 44 states and the District of Columbia allow information about the impact of the offense(s) on the victim to be included as part of the pre-sentence report; every state allows victim impact statements at the sentencing hearing, and 47 of them allow oral statements at sentencing. (All statutes discussed in this summary are current through 1997 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)

At the federal level, victim impact information is to be included in the pre-sentence report. In addition, as part of the Federal Crime Act of 1994, Congress gave federal victims of violent crime or sexual assault the right to speak at sentencing. Through the Child Protection Act of 1990, child victims of federal crimes are allowed to submit victim impact statements in measures which are "commensurate with their age and cognitive development," which could include drawings, models, etc.Victim impact statements usually describe the harm the offense has had on the victim, including descriptions of the financial, physical, psychological or emotional impact, harm to familial relationships, descriptions of any medical treatments or psychological services required by the victim or the victim's family as a result of the victimization, and the need for any restitution. State law might list the elements to be included in the statement, or it may simply permit a "description of the impact of the offense." In addition, many states allow the victim to state his or her opinion about the appropriate sentence.

Along with victim impact statements at sentencing, the majority of states also permit victim input at the parole hearing of the offender. To provide such input, the victim is usually required to maintain a current address on file with the parole board, the prosecutor's office, or some identified criminal justice agency.

In a number of states, the original victim impact statement that was prepared for the sentencing hearing is included in an incarcerated offender's file by corrections and paroling authorities, and reviewed as part of the parole process. A number of states also invite victims to submit an updated impact statement which can include any evidence of communication they may have received from the offender or the offender's associates since sentencing, as well as any other new or updated information concerning the crime's impact on the victim (such as additional physical therapy, surgeries, etc., or continued psychological impact and/or treatment).

Less frequently, victims have input into bail hearings, pretrial release hearings, plea bargain hearings, and other proceedings. Georgia allows victims to submit an impact statement which shall be attached to the file and may be used by the prosecutor or court in making decisions at any stage of the proceedings involving predisposition, plea agreements, sentencing, or determination of restitution.

Generally, the law specifies that victim impact statements may be oral or written, but in several states the statement may also be made by means of videotape, audiotape, or other electronic means. Such flexibility in the form of the impact statement can be particularly beneficial for victims who wish to give input to a parole board, as the victim may live hundreds of miles from the facility where a parole hearing is held. Several states also allow child victims to submit drawings to describe the impact a crime has had on their lives.

The right to present victim impact information, whether written or oral, is usually guaranteed by law. However, some states leave the matter in the discretion of the judge or other officials (such as the parole board). While the laws do not always ensure that the victim impact statement will do more than allow victims a chance to express themselves, many states specifically require the court or board ruling on the offender's status to consider the victim's statements in making its decision.

In most states, a defendant has the right to contest assertions made in the victim impact statement. This is most often limited to objecting to factual statements in the statement. In a few states, the defendant or defense counsel may have the right to cross-examine the victim about the impact statement.

Until recently, victim impact statements were held inadmissible in cases where the death penalty was sought. However, the U.S. Supreme Court in Payne v. Tennessee (1991) reversed its earlier ruling and found that the admission of victim impact statements in capital cases did not violate the Constitution. A few states continue to prohibit the use of victim impact statements in death penalty cases.

For more information about the use of victim impact statements in your state, contact your local prosecutor's office, your state Attorney General's office, or your local law library.

"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."

The inference being that electing judges is to blame? Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?

Thank you, sir. As I said, I believe this is one of the points that Justice Stevens is making in his book review, yes. And your second point is one that can, indeed, be made. As I mentioned there is a great deal of debate about the selection process of judges currently. Again, I recommend the Bonneau and Hall book mentioned above.

My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".

But the social contract is a creation of philosophers. You sound like a Hobbesian, given what seems to be your view of the state of nature. Once in the social contract, according to Hobbes, the ruler (prefered to be a strong, centralized monarch) has nearly total control of the process of goverance. Is this something that you desire, so that we do not revert to the state of nature, in which, of course, man's experience is solitary, poor, nasty, brutish and short?

The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.

Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.

My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.

The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.

Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.

My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.

Cute. One difference is that gravity is viewed through the same lens. Bodies with more mass have larger gravity, etc. There are, in contrast, several different conceptions of the social contract. While Hobbes's created view of the state of nature is one in which people's fates are terrible, this need not be the case (see Locke). And, how the SON is viewed plays a major role in the desired and expected powers and actions of the government which is set up to end the state of nature.

It can be assumed that different cultures and different times recognized the phenomena of gravity, no matter what they called it and how they explained it. Offhand, I don't know what ancient chinese scholars called gravity or how they explained it worked. Aristotle thought things had an attraction to a location due to their inherent properties. Galileo worked on using the scientific method to document the phenomena without trying to explain it. Newton's concepts set the stage but were imperfect, but Einstein's space-time model has thus far become the dominant one for understanding gravity, at least until we take the next step forward towards a unified field theory.

There is a lot of fantasy and projection associated with non-western cultures and assumptions of some "noble savagery" inherent in a closeness with nature. I know that my tribe had very strange burial habits and a love of recreational sadistic torture for enemy captives that tend to undercut those that argue for the inherent goodness to be found in human nature. Take a quick trip to africa where slavery and horrific brutality are the norms in lots of different place. I'm not sure if the machete has been used as a tool nearly as much as it has been a weapon for atrocities there. Nothing like baskets full of severed hands to fuel the diamond trade.

Let's look at the muslim world. Great place so long as you aren't female or a non-muslim or interested in questioning the theology or mind poverty. The best places in asia are the most westernized. Hunter-gatherer tribes tend to have homicide rates far worse than any inner city warzone you'd find in the US. Europe is great, aside from it's bloodsoaked history and rapid absorption into the aforementioned muslim world.

So where exactly would I find that example of a happy state of nature that isn't in a disney film?

"Sadistic torture for enemy captives" does not undercut the idea of a peaceful state of nature (at least not as a stand alone example). This happens within a social contract also. See, for example, early American history. Slaves were born outside of a social contract, had no chance of entering the social contact, and were still abused. That did not make the early United States a state of nature.

And the slave trade originated within africa and then marketed and embraced by muslim arabs, as islam has no moral prohibition regarding slavery. The Dutch were the first europeans to get into the african slave trade. For every 1 african slave sent to the US, 7 went to Brazil. The US fought a horrific civil war to end slavery in the US. The US and England used their military forces to curb the slave trade, though it still goes on in africa and the muslim world.

All of your examples are societies with social contracts taking advantage of those outside of their own social contract. I was not singling out the US slave history. i was using it as an example. You still haven't illustrated this horrible state of nature you claim is the basis of human interaction without government.

Most anywhere on the planet. Most people live under some form of dictatorship/kleptocracy, or live without a formal government, where bands of thugs or bands of thugs under a warlord rob, rape and pillage at will. Even most hunter-gatherer tribes in various places engage in tribal warfare and clan warfare with a high rate of serious injury and fatality.

In the decade of Darfur and Iraq, and shortly after the century of Stalin, Hitler, and Mao, the claim that violence has been diminishing may seem somewhere between hallucinatory and obscene. Yet recent studies that seek to quantify the historical ebb and flow of violence point to exactly that conclusion.

A HISTORY OF VIOLENCE by Steven Pinker

Introduction

Once again, Steven Pinker returns to debunking the doctrine of the noble savage in the following piece based on his lecture at the recent TED Conference in Monterey, California.

This doctrine, "the idea that humans are peaceable by nature and corrupted by modern institutions—pops up frequently in the writing of public intellectuals like José Ortega y Gasset ("War is not an instinct but an invention"), Stephen Jay Gould ("Homo sapiens is not an evil or destructive species"), and Ashley Montagu ("Biological studies lend support to the ethic of universal brotherhood")," he writes. "But, now that social scientists have started to count bodies in different historical periods, they have discovered that the romantic theory gets it backward: Far from causing us to become more violent, something in modernity and its cultural institutions has made us nobler."

Pinker's notable talk, along with his essay, is one more example of how ideas forthcoming from the empirical and biological study of human beings is gaining sway over those of the scientists and others in disciplines that rely on studying social actions and human cultures independent from their biological foundation.

—JB

STEVEN PINKER is the Johnstone Family Professor in the Department of Psychology at Harvard University. His most recent book is The Blank Slate.

ScienceDaily (May 14, 2007) — Researchers observing wild chimpanzees in Uganda have discovered repeated instances of a mysterious and poorly understood behavior: female-led infanticide. The findings, reported by Simon Townsend, Katie Slocombe and colleagues of the University of St. Andrews, Scotland, and the Budongo Forest Project, Uganda, appear in the journal Current Biology.

Infanticide is known to occur in many primate species, but is generally thought of as a male trait. An exception in the realm of chimpanzee behavior was famously noted in the 1970s by Jane Goodall in her observations of Passion and Pom, a mother-daughter duo who cooperated in the killing and cannibalization of at least two infant offspring of other females. In the absence of significant additional evidence for such behavior among female chimpanzees, speculation had been that female-led infanticide represented pathological behavior, or was a means of obtaining nutritional advantage under some circumstances.

As the result of new field work involving the Sonso chimpanzee community in Budongo Forest in Uganda, the St. Andrews researchers now report instances of three female-led infanticidal attacks. Alerted to the killings by sounds of chimpanzee screams, the researchers directly observed one infanticide, and found strong circumstantial evidence for two others. Evidence suggested that in two of the cases, the killings were perpetrated by groups of resident females against "stranger" females from outside the resident group. Infants were taken from the mothers, who were injured in at least two of the attacks; in at least one case, adult males in the area exhibited displaying behavior, with one old male unsuccessfully attempting to separate the females.

The authors point out that these new observations indicate that such female-led infanticides are neither the result of isolated, pathological behaviors nor the by-product of male aggression, but instead appear to represent part of the female behavior repertoire in chimpanzees.

Chimpanzee behaviourKiller instinctsLike humans, chimpanzees can engage in guerrilla warfare with their neighbours. As with humans, the prize is more land Jun 24th 2010 | from PRINT EDITION

.PEOPLE are not alone in waging war. Their closest living cousins, chimpanzees, also slaughter their own kind—in brutal attacks that primatologists increasingly view as strategic, co-ordinated assaults rather than random acts of violence. But however tempting it is to see these battles through the lens of human warfare, the motives for chimp-on-chimp violence are poorly understood. In particular, researchers have long debated whether the apes fight for land, or for females.

A report just published in Current Biology may help to settle the question. The study it describes, led by John Mitani, of the University of Michigan in Ann Arbor, is the first to offer a detailed picture of organised conflict between chimpanzees. Drawing on a decade of observations in the field, it concludes that, as with human conflict, wars between chimpanzees are fuelled by territorial conquest.

Between 1999 and 2008 Dr Mitani and his colleagues shadowed a group of chimpanzees called the Ngogo, who live in the Kibale national park in Uganda. Most of the time, the Ngogo chimps were anything but model soldiers—squabbling, foraging and lolling about their domain. But on 114 occasions Dr Mitani’s colleague Sylvia Amsler watched large groups of males strike out on silent, single-file patrols to the fringes of their territory.

These forays often turned violent. All but one of the 18 fatal attacks Dr Amsler witnessed occurred during boundary patrols. In each case, males colluded to kill chimps from a neighbouring group.

The territorial imperative

To understand what motivated this violence, the researchers looked at which chimps were actually attacked. If the purpose of chimpanzee warfare were either rape or the abduction of mates, then the expectation would be that adult males would be the targets of lethal violence. On occasion, they were. But most victims were juveniles, and of both sexes.

Furthermore, chimpanzee mothers were often beaten as the raiders snatched and killed their offspring. Though these assaults on mothers were rarely lethal, patrolling chimps were clearly more likely to batter females than recruit them as mates, suggesting that other motives might drive their violent behaviour.

The researchers therefore asked whether geography offered a better explanation. Using the Global Positioning System to map patrol routes and attack locations, they saw that the Ngogo chimps’ reconnaissance fanned mainly beyond their north-eastern border, encroaching onto the land of a neighbouring group. Almost all of the killings occurred in this disputed territory, which sported particularly fine stands of the chimps’ favourite fruit-tree. By the time the study ended, the Ngogo group’s campaign had displaced its rivals completely, annexing the north-eastern lands and enlarging its range by 22%.

Though the territorial upgrade may eventually attract new mates, none of the displaced females has been spotted joining the Ngogo group. This suggests that real estate, not a tight mating market, is the true motive for chimp combat. Such motivation makes sense in the context of the discovery in 2004, by Jennifer Williams of the University of Minnesota, that larger territories enabled chimps in neighbouring Tanzania to produce more offspring. This provides an evolutionary incentive for the apes to expand their range—and its associated resources—by any means necessary.

Can chimpanzee skirmishes tell people anything about their own violent tendencies? One lesson, which may surprise cynics, is that humans are more peaceful than chimps. The rate of killing Dr Mitani reports is between one-and-a-half and five times that seen in human agricultural societies—and between five and 17 times higher than attrition due to warfare among hunter-gatherers, who could have less need to defend territory than farmers. (It is also, it must be acknowledged, higher than that reported for other chimpanzee communities, suggesting that the Ngogo troop may be exceptionally bellicose.) In the context of comparisons with humans, though, the most salient feature of chimpanzee combat may be its co-operative nature.

Chimps avoid single combat. To fight successfully, they must maintain complex, collaborative social networks—suggesting that only by bonding within groups can chimps engage in violence between such groups. This has big implications. It may be the ability to form bonds with strangers was forged by the demands of war. Thus, the human tendency to coalesce around abstract concepts such as religion or nation, which underpins civilisation, may well be an evolutionary legacy of a violent past. Signs of anything similar in a species that, albeit a close-ish relative, parted company from the line leading to humans at least 5m years ago are therefore interesting.

Recently, though, anthropologists have subtly revised the view that the invention of agriculture was a fall from grace. They have found the serpent in hunter-gatherer Eden, the savage in the noble savage. Maybe it was not an 80,000-year camping holiday after all.

In 2006 two Indian fishermen, in a drunken sleep aboard their little boat, drifted over the reef and fetched up on the shore of North Sentinel Island. They were promptly killed by the inhabitants. Their bodies are still there: the helicopter that went to collect them was driven away by a hail of arrows and spears. The Sentinelese do not welcome trespassers. Only very occasionally have they been lured down to the beach of their tiny island home by gifts of coconuts and only once or twice have they taken these gifts without sending a shower of arrows in return.

Several archaeologists and anthropologists now argue that violence was much more pervasive in hunter-gatherer society than in more recent eras. From the !Kung in the Kalahari to the Inuit in the Arctic and the aborigines in Australia, two-thirds of modern hunter-gatherers are in a state of almost constant tribal warfare, and nearly 90% go to war at least once a year. War is a big word for dawn raids, skirmishes and lots of posturing, but death rates are high—usually around 25-30% of adult males die from homicide. The warfare death rate of 0.5% of the population per year that Lawrence Keeley of the University of Illinois calculates as typical of hunter-gatherer societies would equate to 2 billion people dying during the 20th century.

At first, anthropologists were inclined to think this a modern pathology. But it is increasingly looking as if it is the natural state. Richard Wrangham of Harvard University says that chimpanzees and human beings are the only animals in which males engage in co-operative and systematic homicidal raids. The death rate is similar in the two species. Steven LeBlanc, also of Harvard, says Rousseauian wishful thinking has led academics to overlook evidence of constant violence.Not so many women as men die in warfare, it is true. But that is because they are often the object of the fighting. To be abducted as a sexual prize was almost certainly a common female fate in hunter-gatherer society. Forget the Garden of Eden; think Mad Max.

Constant warfare was necessary to keep population density down to one person per square mile. Farmers can live at 100 times that density. Hunter-gatherers may have been so lithe and healthy because the weak were dead. The invention of agriculture and the advent of settled society merely swapped high mortality for high morbidity, allowing people some relief from chronic warfare so they could at least grind out an existence, rather than being ground out of existence altogether.

a) If you have a chance, would you please post your relevant posts here on the Evolutionary Psychology/Biology thread as well? I am familiar with some of them, but others are new to me.

b) I will take a stab at offering an example: Eskimos. Also, if I have a chance I will check some resource materials (e.g. R. Wright's "Non-zero Sum, the logic of human destiny") concerning the Native Americans of the Northwest before the white man came.

GM, Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.

GM, Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.

Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.

Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.

The question of elected and unelected judges is very interesting, and more complicated than that sounds. For example, the Iowa vote was a form of impeachment by the voters. The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it). Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit. That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also.

The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices. http://www.desmoinesregister.com/article/20101120/NEWS/11200334/How-will-ousters-affect-pool-of-justice-applicants- My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice. That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.

The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.

Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!) For some reason I never see that point acknowledged in death penalty discussions. Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." I will settle for one out of five and rest my case.

Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4). I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.

Unequal application is a concern. I hadn't seen the argument before regarding elected/unelected judges. I see it made over black vs. white convicts and don't know what to make of it. What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly.

Nearly half the people murdered in the United States each year are black, part of a persistent pattern in which African Americans are disproportionately victimized by violent crime, according to a new Justice Department study released yesterday.

The study by the Bureau of Justice Statistics also found that from 2001 to 2005, more than nine out of 10 black murder victims were killed by other blacks, and three out of four were slain with a gun. Blacks, who make up 13 percent of the population, were victims in 15 percent of nonfatal violent crimes.

The new findings underscore the enduring problem of crime that plagues many African American communities, even during a period when the incidence of violent crime dropped or held steady overall, according to criminologists and other experts.

Some experts said the study also illustrates that encounters with criminals are often more likely to turn deadly for black victims than for victims of other races, in part because black victims are more likely to be confronted with firearms.

"Black victimization is a real problem, and it's often black on black," said David A. Harris, a law professor at the University of Toledo who studies crime trends. "That aspect has to be brought into any attempt to address the crime problem, and the community itself must be called into the process."

The Justice study is primarily drawn from two sets of data: FBI homicide reports and the National Crime Victimization Survey, which attempts to measure the actual prevalence of crime through scientific polling. The Justice Department has not done a study on black victimization in more than a decade, but outside researchers have reached similar conclusions, officials said.

In 2005, the study found, blacks were victims of an estimated 8,000 homicides and 805,000 other violent crimes, including rape and aggravated assault.

The study found that black males were more likely to be crime victims than black females; that black murder victims tended to be younger than white or Hispanic homicide victims; and that blacks in poor or urban households were more likely to be victimized than those in higher-income or rural areas.

Homicide Trends in the U.S.Trends by raceRacial differences exist, with blacks disproportionately represented among homicide victims and offenders In 2005, homicide victimization rates for blacks were 6 times higher than the rates for whites.To view data, click on the chart.

Bringing forward a question I posed a couple of months ago relating to one concept in law applyied to two different issues. Bigdog or anyone else, please point out where my logic fails.

Our progressive tax system allows and requires that a dollar of income is taxed differently depending on the how it is earned and the circumstances of the earner. It passes constitutional muster because the same formula applies to everyone, but it is explicitly sold to the voters as treating different classes of citizens differently: "these folks" can afford to pay more, "only the rich" will have their taxes raised. (Only the gay will have their marriages denied.)

Moving to gay marriage: Tradition marriage gives every adult the exact same right to marry one person of the opposite gender. That you have a different circumstance is no different (IMO) than an estate tax not applying to a poor person, a capital gain tax not applying to a person without a capital gain, corporate double taxation not applying to people without a corporation, food stamps not available to the well-fed, etc. Every person has the exact same right in America to marriage. Some such as single persons or gay couples are in different circumstances, not denied equal protection.

How do you strike that down without also striking down our bizarre system of endlessly targeted and intentionally selective taxation?

GM, Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.

Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.

Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.

I agree. But that means that the State of Nature is a construct. It was used by philosophers to construct the need for the constructed social contract.

The question of elected and unelected judges is very interesting, and more complicated than that sounds. For example, the Iowa vote was a form of impeachment by the voters. The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it). Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit. That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also.

The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices. http://www.desmoinesregister.com/article/20101120/NEWS/11200334/How-will-ousters-affect-pool-of-justice-applicants- My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice. That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.

The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.

Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!) For some reason I never see that point acknowledged in death penalty discussions. Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." I will settle for one out of five and rest my case.

Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4). I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.

Unequal application is a concern. I hadn't seen the argument before regarding elected/unelected judges. I see it made over black vs. white convicts and don't know what to make of it. What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly.

You are a thoughtful chap, DougMacG. Please note that only mostly conceded the point to you, and raised another potential issue. I agree with you on the importance of the Full Faith and Credit clause. Illinois has OK'd civil unions, in the legislature. Interesting, given our current train of discussion.

There is certainly no perfect method of judicial selection. There are issues that one can find in any selection process. I think it is a good thing that we have 51 (or more, really) judicial systems within the United States. It allows the states to be more mindful of the needs of their residents. And, yes, I just made a (pseudo) states rights argument. I do like the states as "laboratories of democracy."

Parsing the deeply entwined threads of nature and nurture is a difficult task that is far from completed by the social sciences, especially because today's social sciences tend to be heavy on the "social" (Immersed in the internal politics of academia and it's ideological allegiances) and very light on the science.

Not matter the cultural software, we are still rooted in the biological hardware and it's evolutionary legacies inherent in that structure. In turn, how we as humans organize ourselves and structure our societies do not emerge from a vacuum. Human had rules, customs and taboos and methods for enforcing the models of behavior long before someone bothered to chip the Code of Hammurabi onto a stone tablet. We, as a species are dependent on our fellow humans for our survival as individuals and as a collective. As a result of this dynamic, there is a feedback loop between the group and the individual. Call it a social contract or use another term if you wish. It's a real phenomena, no matter what term is used to describe it.

Plenty of coverage everywhere, see blog linked by Bigdog in the previous post on this thread.

Seems to me this makes it more likely it will rise to the Supreme Court, though it could stop first in the 4th District as other challenges proceed elsewhere. Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy.

The Obama administration says the mandate is no different than a tax. Obama also went on national television a year ago during the heated policy debates to tell us this is not a tax. Go figure.

Minds smarter than mine will tell you how this is merely a logical extension of the commerce clause or the income tax amendment. But the framers didn't envision a healthcare mandate. They envisioned future desires to expand federal government powers and put in a very specific AMENDMENT CLAUSE so people later could easily (or not so easily) expand the powers to those needed later that they didn't envision or enumerate a couple of hundred years ago.

Try this at home, fill in the blank: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are ... what?? .................................................................----------------------http://online.wsj.com/article/SB10001424052748703727804576017672495623838.htmlDecember 14, 2010ObamaCare Loses in CourtA victory for liberty and the Constitution in Virginia.

Only a few months ago, the White House and its allies on the legal left dismissed the constitutional challenges to ObamaCare as frivolous, futile and politically motived. So much for that. Yesterday, a federal district court judge in Virginia ruled that the health law breaches the Constitution's limits on government power.

In a careful 42-page ruling, Judge Henry Hudson declared that ObamaCare's core enforcement mechanism known as the individual mandate—the regulation that requires everyone to purchase health insurance or else pay a penalty—exceeds Congress's authority to regulate the lives of Americans.

"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision [the individual mandate] would invite unbridled exercise of federal police powers," Judge Hudson writes. "At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."

So the issue is joined, and no doubt with historic consequences for American liberty. For most of the last century, the U.S. Supreme Court interpreted the Constitution's Commerce Clause as so elastic as to allow any regulation desired by a Congressional majority. Only with the William Rehnquist Court did the Justices begin to rediscover that the Commerce Clause has some limits, as in the Lopez (1995) and Morrison (2000) cases.

The courts up through the Supremes will now decide if government can order individuals to buy a private product or be penalized for not doing so. If government can punish citizens for in essence doing nothing, then what is left of the core Constitutional principle of limited and enumerated government powers?

Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.

But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."

Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."

Liberals are attacking Judge Hudson because he was appointed by George W. Bush, but his ruling is relatively narrow. He didn't strike down the rest of ObamaCare even though it lacked a severability clause, and he didn't enjoin the law's implementation pending appeal. His opinion also doesn't touch Virginia Attorney General Ken Cuccinelli's long-shot claim that his state's "health freedom" law can nullify an act of Congress. In fact, federal laws that are constitutional are supreme under the 10th Amendment.

Yesterday liberals were crowing that even if the mandate is eventually declared illegal, it's no big deal because the rest of ObamaCare's new system would remain intact. Yet they've argued for years that the mandate is essential to health reform, because the mandate is at the heart of the regulatory machine. ObamaCare without a mandate would mean individuals wouldn't have to pay into a system until they were sick, driving up costs even faster and ruining what's left of health insurance markets.

While Judge Hudson's ruling is the first to declare part of the law unconstitutional, more than 20 state attorneys general and the National Federation of Independent Business are also suing in Florida. Oral arguments will be heard on Thursday in that case, which we think is the strongest constitutional challenge to the law.

As the Virginia case shows, ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldn't be higher for our constitutional order.

In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.

She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.

The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.

Some details in this editorial that are often left out in some right wing commentary:=======================

Republicans have a long history of favoring small government except when it comes to surveillance and security, at which point civil liberties take a back seat. Last week, however, 26 Republicans in the House demonstrated a remarkable consistency by joining 122 Democrats to prevent the extension of three questionable provisions of the Patriot Act, the post-9/11 law created during the Bush administration.

USA Patriot ActThe vote splashed some cold water on the House Republican leadership, which had been so confident that it raised the extension under fast-track rules that require a two-thirds majority. The leadership is planning to bring it back this week under the normal rules. It is almost certain to pass and be sent to the Senate.

Nonetheless, the concerns that briefly brought together liberals, Tea Party members and longtime centrists from both parties should send a message to the White House and the Senate. The provisions of the Patriot Act should be carefully re-examined before being hastily reauthorized year after year. The Tea Party-backed congressman Justin Amash of Michigan was right to say that some raise serious concerns about violating the ban on unreasonable searches and seizures.

Three provisions in the act are set to expire on Feb. 28, and would be renewed under the House bill, supported by the Obama administration, through December.

One would allow a roving wiretap on a terror suspect to monitor his conversations as he moves from phone to phone. That can be a useful tool, but the authorization is so broad that the government does not even have to specify the suspect’s name to get a warrant. The failure to provide a more narrow identification of the suspect is too lax and could lead to abuse.

Another expiring provision has long raised serious civil liberties concerns, allowing the government to examine library and bookstore records of suspects, along with hard drives, tax documents and gun records. Investigators are not required to show probable cause that the material is related to a terrorist investigation.

The third provision, allowing surveillance of “lone wolf” suspects who may not be tied to recognized terror organizations, is also overly broad but has never been used. Rather than renew it without debate, the government should explain whether it is really necessary.

The extensions will probably pass the House this week — though leaders do not plan to give anyone a chance to amend them — and go to the Senate, which should provide another opportunity for reconsideration. Senator Patrick Leahy of Vermont, the Judiciary Committee chairman, has introduced a bill that would add several safeguards to the act, most notably the phasing out of “national security letters,” which the F.B.I. has used to obtain evidence without a court order. These letters have been subject to widespread misuse and have never received proper oversight.

Unfortunately, the same bill that would bring the letters under control would extend the three expiring provisions in the Patriot Act through 2013. It is a much better measure, however, than a bill by Senator Dianne Feinstein that would extend the provisions for three more years without the new safeguards, or one by Senator Mitch McConnell that would make the three provisions permanent. Congress should not miss an opportunity to wield some oversight on this issue and determine whether the government could achieve its goals with less sweeping surveillance powers.

One would allow a roving wiretap on a terror suspect to monitor his conversations as he moves from phone to phone. That can be a useful tool, but the authorization is so broad that the government does not even have to specify the suspect’s name to get a warrant. The failure to provide a more narrow identification of the suspect is too lax and could lead to abuse. **Anything can potentially lead to abuses. Ignorance of criminal investigations exemplified by this editorial is typical of attack on the PATRIOT act. Anyone know what a "John Doe" warrant is?

Likewise, that is a nice article. Judges here generally run unopposed and win with 99+% of the vote, but I agree that having a mechanism available to expose and remove them short of impeachment tends to keep them on track doing the best job they can.

I also like that BD has friends out there opposing both the ABA and the work of Sandra Day O'Connor, no matter the issue.

I think if you are in a public place, you have no reasonable expectation of privacy. If you are a law enforcement officer, you should expect to be the subject of public interest and documentation and conduct yourself accordingly. There shouldn't be any laws forbidding Joe or Jane citizen from documenting police action. It is a form of checks and balances.